(The complaint filed by the complainant before this commission against the opposite party praying to direct the opposite party to pay sum of Rs.77,62,535/- with 18% interest from the date of complaint till realisation. This complaint coming before us for final hearing on 16.02.2015 and heard the arguments on either side, and perused the records and passed the following order:)
A.K. Annamalai, Presiding Judicial Member
The complaint filed under Sec.17 of the Consumer Protection Act, 1986.
The complainant claiming directions for the payment of Rs.77,62,535/- with 18% interest alleging deficiency in service regarding the claim made under the insurance policy for the damages and loss caused to one of the windmills of the complainant and for compensation for mental agony and for costs.
2. The gist of the complaint in brief as follows:
The complainant is a Public Limited Company engaged in the business of generation of power from renewable energy sources, predominantly wind. The complainant had established wind farms at Aralvaimozhi Village, K.K.District, Perunkudi village and Kethanur Village, Palladam, Tiruppur. The complainant possesses 10 wind mills at the above said places. The complainant had purchased the wind mill from one M/s.Sangeeth Carter Wind Power (P) Ltd. It was the manufacturer who had installed the wind mill at the complainant’s site with all the fittings. The said M/s.Sangeeth Carter Wind Power (P) Ltd have also issued a certificate of installation to that effect. The complainant has taken various policies for its equipment to indemnify against any loss due to exposed to the vagaries of nature break down wear and tear etc and as per the same one of the wind mills situated in S.F.No.169/2 at Kethanur Village, Palladam, Tiruppur had fallen down on 8.9.2003 at about 8.15 a.m for which a claim was made under the policy No.720202/11/02/00332 for the period covering from 21.10.2002 to 20.10.2003 coverage is for Rs.3 crores estimated loss for Rs.50 lacs. After the claim is made the surveyor visited the premises submitted main report assess the loss caused to the complainant and they have offered to settle the claim for Rs.25,06,000/- which was accepted by the complainant in their letter dated 16.03.2004. Inspite of the same no response was made from the opposite party and thereby a letter was sent on 29.11.2004 and no action was taken for the same and subsequently came to know that some clarification sought for which already documents were furnished to thesurveyor it is kept pending and on 11.5.2005 and the opposite party sought for certain clarifications regarding the location of various wind mills S.F.Nos, S.C.Nos, year of manufacture etc for identification purpose and the details of policy for which necessary details were furnished informing them that the complainant having 10 windmills of which 2 of their own, 4 were taken on lease with M/s.ICICI Ltd and other 4 were on lease with Sri Vasudeva Textiles Ltd. The claim was made for their own and thereafter the claim was repudiated on various grounds regarding the fitting of blades, length of blades extra and production of log book, details various registers and the claim also was made for the same in the earlier claim on the same reasons and there was no possibility for miscreant or criminal act in causing damage to the wind mill and thereby claim was repudiated and hence consumer complaint came to be filed claiming reliefs as stated above.
3. The opposite party denied the allegations in their written version mainly contended that the complainant is not maintainable as it is disclosed the nature of claim as commercial and business of commerce and profit alone and since the claim was in the nature of indemnification of a possible loss, it may not partake the character within the prohibited field. The complainant has not a consumer having availed the service of the insurance policy for protecting himself in the course of generating profit. The complainant was an out and out commercial enterprise given to profit making. Generating profit from the use of windmills was the basic pursuit and any service availed contextually therefore to cover the risk to the windmills would as a matter of course constitute a commercial purpose alone. Hence theclaim is involved resolution of complicated question of fact which required number of filing oral and documentary evidence even assuming without admitting that the complainant should be may be the more appropriate one when the claim is based on commercial cause of action. There was no proposal for settlement of offer as alleged. The attempt of the complainant to suggest as if it was a straightforward claim like any other, is totally misplaced as the long relationship between the parties and the host of claims lodged year after year, even while not insuring all the windmills available, but selectively issuing and submitting misleading documents tutored to sustain claims for every other windmill, all may lead a very detailed and comprehensive delineation as well consideration of voluminous oral and documentary evidence. The complainant had availed a policy of insurance No.720202/11/02/00332 for the period from 21.10.2002 to 20.10.2003 in respect of Wind Electricity Generator-Transformer with the insurer and a claim was reported in respect of occurrence dated 8.9.2003. The surveyor carried out his assignment and filed a report dated 25.03.2004 earlier a preliminary surveyor was appointed and he filed his report dated 5.5.2004 and the reports with enclosures and on examination of the claim, the insurance company got a serious doubt with regard to the identity of the Wind Mill Generator which was alleged to have been damaged in the occurrence dated 9.9.2003. The insurer was surprised to note that while the insured was in custody and control of nearly 40 such windmills, with leasing arrangements with several entities, not all of them were found insured either with this insurer or with any other. It was also noted that continuously claims had arisen in respect ofthe insured windmills and they were also found to have been settled. Upon scrutiny of the continuous record of insurance, it was found that not all the windmills, under custody and care of the insured were ever insured with this insurer. It was always found that there were several windmills which remained uncovered. In respect of this claim, upon careful scrutiny it was found that there was total absence of credible documentary evidence to suggest that the damaged windmill was the one which was covered under policy No.00332 supporting lease agreements furnished in support of this claim but on earlier occasions also were found to be with several discrepancies. The identity of the property insured was not satisfactorily carried out by the surveyor. Even though the surveyor appointed in cases where the claim was more than Rs.20000/- it is very clear that the findings of the surveyor would not bind the insurer and the insurer can independently examine the claim and decide on admissibility even contrary to the findings given by the surveyor. Identification of the property was the primary aspect and the insurer was found that not all windmills were covered, it became a very significant factor for the insurer. The surveyor could not satisfy the insurer that the damaged windmill was the one insured under policy No.332. There was credible evidence to infer that the insured was deliberately submitting convenient sets of lease agreements, in support of his claims, but were not actually true or genuine. In the map along with the claim papers in which the damaged windmill No.SMS3 was found to be under SF No.169/1 but the surveyor had submitted four location charts which were different and distinct from each other and the locations were also not correct and the identity of the windmill wasalso not clear. Even the addendum report of the surveyor did not clarify the positions. The complainant chosen to identify the claim in respect of windmill in S.F.No.169/2 at Kethanur Village, Palladam and under Policy No.00332. But an examination of the previous and existing insurance policies, including the one subsequent to Policy No.00332 the damaged windmill was found in 169/1 and was in fact not insured at all under Policy No.00332 on 8.9.2003, the alleged date of loss. Basis of the documents in house enquiry it would disclosed that it was a simple case of an uninsured windmill, which was ingeniously brought within the ambit of policy No.00332 and the surveyor had failed to see the attempt in this regard. On the basis of records and the map and chart the damaged wind mill alleged to have been on location in 169/2 was the one which was insured under policy No.00332. The alleged damage to the windmill on 8.9.2003was alleged due to malicious act of unknown miscreants. The FIR was registered belatedly after one month on 10.10.2003. The claim relating to malicious act by unidentified miscreants was cooked up. It is the case of insurer the windmill was not damaged if any, in any mishap arising out of operation of the alleged peril of malicious act and the insured was not in a position to trace the loss/damage if any, to any named peril other than malicious act and the windmill on verification of loss or damage was found to have been materially different than what it was at the time of commencement of the cover. There was small alteration the claim would be prejudiced by reason of it and thereby the claim was properly considered found fit for repudiation by letter dated 28.10.2005 and there is no deficiency of service and the letter was sent by thecomplainant offered for settlement for Rs.25,06,000/- was unilateral and no such offer was made. Hence the complaint is to be dismissed.
4. Both sides have filed their proof affidavits and on the side of the complainant Ex.A1 to A38 and on the side of the opposite party Ex.B1 to B23 are marked.
5. The points are for consideration:
1. Whether the complainant is a consumer ?
2. Whether the claim of the complainant for the loss and damage to the windmill caused on 8.9.2003 said to have been covered under the policy No.720202/11/02/00332 for the period from 21.10.2002 to 20.10.2003 is true?
2. Whether the alleged claim is not covered under the policy No.720202/11/02/00332 and not entitled for the claim made by the complainant as alleged by the opposite party?
3. Whether the complainant is entitled for the claim of Rs.77,62,535/- towards claim, interest at 18% from 8.9.2003 till 14.4.2006 and mental agony and compensation and costs?
4. To what relief?
6. POINT NO.1 : In this complaint enquiry the complainant being the spinning mills had claimed a sum of Rs.77,62,535/- along with 18% interest from the date of complaint on the basis of coverage of insurance policy for the loss sustained due to fall of windmill and damaged caused to the same for which the opposite party being the insurer objected the complaint on the ground that the complainant is not aconsumer having generated profit through the commercial enterprises by the use of windmills and relied upon the cases of 'Indo-Swift case SCDRC, Chandigarh and also Harsolia Motors in F.A.No.159/2004 of National consumer Disputes Redressal Commission, New Delhi in which it has been held for any claim arising under a policy of insurance being for ‘indemnification of loss’ would be tenable before this Hon’ble Commission. Any such construction on the decision is wrong and thereby prayer for dismissal of complaint. On the ground on the basis of preliminary objection whereas the complainant pleaded in the complaint in para-12 that they are consumer vis-a-vis the opposite party in as much as they have availed service of the opposite party by taking insurance policies for their windmills on payment of premium and thereby the complaint is maintainable before this Hon’ble Commission and will not be hit by the explanation to Sec.2 (1) (d) of the Consumer Protection Act,1986 inasmuch as a person who takes an insurance policy to cover the envisaged risk does not take the policy for commercial purpose. The policy is only for indemnification of an actual loss and is not intended to generate profit. This contention cannot be accepted in view of the precedent relied upon by the opposite party and also by considering the facts and circumstances of the case as the complainant having more than 10 windmills being a public limited company and is engaged in the business of generation of power from renewable energy sources, predominantly wind and further as far as the case is concerned the policy produced under Ex.A2 revealed that the coverage for the insurance is for Rs.3,00,00,000/- having premium of Rs.50,873/- and the coverage is subject to the warranties & clauses as per formsattached and is extended to cover risks of bank names subject to windmill 4 in numbers and each windmill would cost several lacs of rupees and even in the FIR filed attached with the Ex.Ex.A5 the loss is mentioned as several lacs due to damage caused to the windmill which was fallen. In those circumstances being the public limited company having business engaged in generation of power insured for the risk coverage of windmills which alone in the generation of profit in business is concerned cannot be considered it only for the purpose of eking livelihood as per explanation clause Sec.2 (1) (d) of the CPA and thereby we are of the view that the complainant is not a consumer and they cannot claim any relief from the opposite parties and this point is answered accordingly.
7. POINT NOS.2 & 3 : In this complaint enquiry the complainant claimed insurance amount for Rs.50,00,000/- with 18% interest from 8.9.2003 till 14.04.2006 for Rs.23,37,535/-, mental agony, Rs.2,00,000/- and compensation for Rs.2,00,000/- and costs for Rs.15,000/- to the windmill loss in all for Rs.77,62,538/- for the occurrence on 8.9.2003 situated in S.F.No.169/2 at Kethanur Village, Palladam, Tiruppur for the period of coverage from21.10.02 to 20.10.03 in policy No.720202/1102/00332 for this it is also stated by the complainant after making necessary claim, the opposite party sent their surveyor and had offered to settle the claim for a sum of Rs.25,06,000/- which was accepted by the complainant by their letter dated 16.3.2004 under Ex.A4 but the opposite party denied the same contended that there was no such offer was made and repudiated the claim under Ex.A12 in page-29 in which it is stated as follows:
'1. The cause of loss for the fall of the wind mill is not established beyond reasonable doubt.
2. The claim is being supported by improper documents
3. Material changes have been made to alter the risk.
4. You have not cooperated in submitting the papers called for.'
For these the complainant having filed a complaint for deficiency come forward with various documents under Ex.A13 to A38. Subsequently as additional documents after somany years of filing complaint to prove the establishment of various windmills having control under them with necessary permission from concerned authorities and the other details explaining the circumstances for controverting the repudiation ground. The opposite party mainly relied upon under Sec.64 UM (2) of the Insurance Act it is mandatory for appointment of surveyor to inspect and verified the claim in accordance with the terms and conditions of the act of insurance and as per the same in this case such surveyors have appointed and investigation was made and they are not in a position to fix the original loss of wind mill situated in the area with relevant details inspite of clarifications sought from the surveyors and the complainant has having established 10 windmills admittedly in Aralvaimozhi village, K.K.District, Perunkudi Village and Kethanur Village, Palladam, Tiruppur and in the present case it is held that the windmills erected in S.F.No.169/2 at Kethanur village, Palladam, Tiruppur had fallen on 8.9.2003 for which the claim is made. But the opposite party contended that earlier one Govindasamy was appointed as preliminary surveyor and submitted his report on 5.5.2004 and another surveyor P.S.Ramnathan was appointed and submitted his final report on 25.3.2004 assigningloss and on perusal of the surveyor report with enclosures the insurance company got a serious doubt with regard to indemnify the windmill generator which has been changed due to occurrence on 8.9.2003 and the complainant having custody and control of nearly 40 windmills with leasing arrangements with several entities not all of them were found insured either with the opposite party or with others and continuously claims had arisen in respect of the insured windmills and they were also found to have been settled and not all the windmills were ever insured with the opposite party and there are several windmills which remained uncovered and in case of present claim there was no credible documentary evidence to suggest that the damaged windmills was the one which was covered under the policy No.00332. The supporting lease agreement which were furnished for the claim were the same to be found for the earlier claims with several discrepancies with several set up lease agreement with different field schedule as pointed out in the written arguments of the opposite party and the identity of property was not satisfactorily carried out by the surveyor and inspite of the clarification made the insured had submitted a map alone with the claim papers in which the damaged windmill SMS 3 was found to be under SF.No.169/1. The location charts were also not correct and the identity of the windmill also not cleared. The complainant chosen to identify the claims in windmills SF.No.169/2 at Kethanur Village at Palladam under the policy No.00332 and also there was a delay in giving FIR which was registered only on 10.10.2003 for the occurrence on 8.9.2003 and there may not be possible of any miscreants damaged to the windmill not credibility and therefore the claim is tainted by fraud and fabrication in trying to seek indemnity for an uninsured windmill and it wouldrequires serious examination of oral and documentary evidence and it may be necessary for to a civil suit for proper adjudication. The opposite party relied upon various documents under Ex.B1 to B23 for the same and in Ex.B23 the repudiation was made as already pointed out in Ex.A12 which was one and the same of Ex.B23. Further the opposite party relied upon the rulings reported in the case of 'Sri Venkateswara Syndicate –vs- Oriental Insurance Co.Ltd & Anr dated 24.08.2009 In the Supreme Court of India in the Civil Appeal No.4487/2004 in which it is observed as follows : (para-23)
'Section 64 UM(2) of the Insurance Act, 1938, reads that ‘No claim in respect of a loss which was occurred in India and requiring to be paid or settled in India equal to or exceeding twenty thousand rupees in value on any policy of insurance, arising or intimates to an insurer at any time after the expiry of a period of one year from the commencement of the Insurance (Amendment) Act, 1968 shall, unless otherwise directed by the Authority, be admitted for payment or settled by the insurer unless he has obtained a report on the loss that has occurred from a person who holds a license issued under this Section to act as a surveyor. In our considered view, the Insurance Act only mandates that while settling a claim, assistance of surveyor should be taken but it does not go further and say that the insurer would be bound whatever the surveyor has assessed or quantified, if for anyreason, the insurer is of the view that certain material facts ought to have been taken into consideration while framing a report by the surveyor and if it is not done, it can certainly depute another surveyor for the purpose of conducting a fresh survey to 19Estimate the loss suffered by the insured. In the present case, the insurer has stated in the counter affidavit filed before the National Commission and even before us, why the appointment of second surveyor was necessitated and a
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lso has given valid reasons for appointing second surveyor and also has assigned valid reason for not accepting the report of Joint Surveyor. The correspondence between the insurer and the surveyors would indicate the particulars differed by the insurer for differing with the assessment of loss made by the surveyors. The option to accept or not to accept the report is with the insurer. However, if the rejection of the report is arbitrary and based on no acceptable reasons, the courts or other forums can definitely step in and correct the error committed by the insurer while repudiating the claim of the insured.We hasten to add, if the reports are prepared in good faith, due application of mind and in the absence of any error or ill motive, the insurance company is not expected to reject the report of the Surveyors. (24) Now with regard to the question of awarding rate of interest as compensation in cases where loss is caused due to deficiency / delay in service, this court in various judgments has held that the award of compensation must depend on facts and circumstances of each case and has to be worked out after determining the amount of loss suffered by the 20 consumer.' and on that basis the opposite party contended in this case they are not in a position to settle the claim in view of the reasons pointed out under Ex.B23 and Ex.A12 and thereby there was no deficiency or negligence in their part. While considering these contentions, we are of the view that in view of the complicated issues arisen in thismatter regarding the identity of the windmill location and the mode of changes occurred are all cannot be decided in a summary way without having oral and documentary evidence for which the proper forum will be the Civil Court and accordingly we answered these points. 8. POINT NO.4: In view of the findings in point Nos.1 to 3 and the complainant is not being the consumer and the complaint is liable to be dismissed and this point is answered accordingly. In the result, the complaint is dismissed with liberty to the complainant to approach necessary legal forum by invoking the provision under Section 14 of the Limitation Act if necessary. There will be no order as to costs.